O SARDARILAL KARAMCHAND SHARMA v. COMMISSIONER OF POLICE

CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 05/12/2001 ORAL JUDGEMENT (cid:9)The petitioner has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as `the Act of 1985') by the order dated 17/5/2001 passed by the Police Commissioner, Ahmedabad City and he has been declared as bootlegger.

2.(cid:9)It is now well settled that unless the activities of a person as bootlegger has disturbed the maintenance of public order, he cannot be detained under the Act. Reliance is placed on a decision in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad & Ors. reported in AIR 1989 SC 491.

3.(cid:9)I have heard learned advocate for the petitioner and also perused the material on record. According to learned advocate for the petitioner, the detenu has submitted a representation to the concerned authority and thereby demanded certain documents like statements of constable Babubhai Mulabhai, Babubhai Kantibai etc. Though the concerned authority has received the said representation of the petitioner, the documents as requested to be supplied by him, have not been provided. When the detaining authority has relied upon the said documents for the purpose of passing the order of detention against the detenu, it is the duty of the detaining authority to provide such documents to the petitioner. However, the detaining authority has failed to discharge his duty. Even no affidavit has been filed by the State authority. It has been held in a judgment delivered by this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, Surat and Ors. reported in 2000(1) G.L.H. 393 as under: "Before parting with the matter, we may observe that recently, we have come across few cases wherein no counter-affidavits are filed by the respondents. It is settled law that whenever an order of detention is challenged by a detenu or by his "next friend", it is the duty of the authorities to justify the action by filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or authority other than the detaining authority".

4.(cid:9)Since the material documents, relying on which the impugned detention order has been passed by the detaining authority, have not been supplied by the detaining authority to the petitioner, nor affidavit has been filed either by the detaining authority or by the State authority explaining the action of the detaining authority for not providing the documents on which the detaining authority has relied upon while passing the impugned detention order, the petitioner is prevented from making an effective representation and hence the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points.